1500517 (Migration)

[2015] AATA 3416

1500517 (Migration) [2015] AATA 3416 (25 August 2015)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr TIEN HUY NGUYEN

CASE NUMBER:  1500517

DIBP REFERENCE(S):  BCC2014/2743239

MEMBER:Stuart Webb

DATE:25 August 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 25 August 2015 at 4:27pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 January 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act). The applicant was granted the visa in July 2012.

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant was no longer enrolled in a higher degree course in breach of Condition 8516. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 14 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The applicant provided a copy of the delegate’s decision to the Tribunal.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

6. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 is attached to the applicant’s visa. This condition requires:

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

7. The applicant arrived in Australia in August 2013. The applicant was initially enrolled in a General English course, leading to a Diploma of Business (Enterprise) and a Bachelor of Business (Banking and Finance). On 24 October 2014 the Department sent a Notice of intention to Consider Cancellation (NOICC), which noted that the applicant was no longer enrolled in a Higher Degree course and appeared to be in breach of subclauses 573.223(1A) and 573.231. On 29 October 2014 the applicant responded to the NOICC stating that he always wanted to study in bachelor course and provided a COE in a Bachelor of Business (Management) from Cambridge International College, created on 28 October 2014.

8. The delegate’s decision noted that the applicant was not enrolled in a higher degree course between May 2014 and October 2014. The decision noted that the applicant completed a Diploma of Business Enterprise on 31 December 2013, but his enrolment in a Bachelor of Business (Banking and Finance) at Victoria University was cancelled on 14 May 2014 due to non-commencement of studies. The delegate noted that the applicant had obtained an enrolment in a Certificate III in Commercial Cookery from 12 May 2014 and PRISMS indicated he was studying that course at the time of the cancellation.

9. The applicant confirmed that he had not been enrolled in a higher degree course, both in his evidence to the Tribunal and in the submission provided. The Tribunal stated that it appeared that the ground for the cancellation was made out, which the applicant and his agent with. The applicant was not enrolled in nor had a CoE in a higher degree course for around 5 months. This is in breach of condition 8516 that he continues to satisfy the primary criteria for the grant of a visa. 573.231 requires that an applicant be in enrolled in, or is the subject of a current offer of enrolment in a principal course specified for 573 courses. The applicant did not meet this criterion for these 5 months.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

11. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

12. The delegate noted that the applicant did not provide any information about his circumstances in his response to the NOICC. He only provided the Bachelor of Business (Management) enrolment and stated he always wanted to study a bachelor course.

13. The applicant’s agent provided a submission to the Tribunal. This stated:

    The purpose of the visa holder stay in Australia

    The applicant as advised has always intended to study in Australia at the degree level. He advises that he has been continuously enrolled and has studied in registered courses at approved institutions. The intention as advised was for the applicant to study and return to Vietnam upon completion of his studies. However as advised the review applicant is now in a spousal relationship with an Australian citizen. Application has been made for a Partner visa.

    The review applicant advises that he commenced studies at Victoria University as per his COE. He advises that he completed the Diploma part of his packaged course in December 2013.

    The review applicant advises that he did not continue with the packaged course. The reason for this decision was one based on his and his family's circumstances at the time.

    The review applicant advises that he sought assistance form his Education agent who told him to change to the lower level Course. As advised the review applicant believed that he would be compliant with his visa if he continued to study.

    The review applicant in hindsight understands the full ramifications of his change of course. The realisation of an error made was when he was advised by the same Education Agent to enrol in a Degree course. It was only at this point of time that he fully understood his non-compliance with Condition 8516.

    The review applicant states that it was not his intention to break condition 8516.

    The review applicant was not properly advised nor did he clearly understand that he had to inform the Department of his change of course. Please refer to email sent to the Department of 29 October 2014.

    What he did not do was-given an explanation as to why he changed study streams. This aspect will be covered below in detail. It is to be noted that the review applicant has continued to be enrolled and is studying currently in a degree program. The review applicant has completed the following:

    ·Diploma course as per the initial COE at the time of the grant of the student visa in question.

    ·Certificate III in Commercial cookery. I am advised that the review applicant was enrolled in in a package course incorporating Certificate III and then Certificate IV in commercial Cookery and then following to the Diploma of business. The Diploma of Business was to have commenced in July of 2015, The COE for this Diploma was not provided to the Delegate.

    ·The review applicant returned to study at the Degree level in March 2015. As advised he did not provide a  COE which indicates that he was to commence the Diploma studies in July of 2015. Because of his realisation of the difficulties he had brought upon himself he sought  financial support to commence the degree course which as stated above commenced in March of 2015 not the Diploma as originally intended when he commenced the Certificate program package.

    Reason and extent of any breach of a visa condition

    The applicant advises that he was reliant totally on the Education Agent in regards to his change of course.

    The applicant advises  that had he known he would have explained his personal and family circumstances that led to his change of course.

    The applicant advises that it was always his intention to continue studying at the degree level and that he changed streams in order to continue to be a student. He advises that he did not wish to stop studying.. As indicated elsewhere his personal and family circumstances took a turn for the worst. His father became unwell and eventually had to stop work. He states that he did not have the funds to continue at the higher level and rather than stop studying he felt that he should continue studying. As advised his education agent told him to study at the Certificate level. In hindsight the review applicant understands that he had other options which he did not pursue. He could sought a deferral or organised payment plans in order to continue studying but as advised he is wiser now.

    The applicant now understands that he should have understood the meaning of the conditions imposed. This he did not fully understand at the time. He advises that only after the NOIC was sent to him the Education agent did not fully explain to him the position he found himself in. The review applicant now understands that he breached condition 8516 but states however there was never an intention not to study and it was always his intention as he states in his email referenced to above that his intention was to study in bachelor course.

    The review applicant states that only when he fully understood the urgency and situation that had developed did he re-enrol in the Degree program. Having done this he did not send to the Department all of the COE's. He advises that he changed his commencement date from July 2015 to March 2015. Moreover he states that he continued to study in the Certificate in a program III in Commercial Cookery until he completed this. He commenced a Degree program in March of 2015 and is currently enrolled in this program.

    Degree of hardship that may be caused

    The applicant advises that his intention was to study at the Degree level. If he does not return to study at the degree level there will be considerable hardship to him and his family

    This hardship as advised can be measured in personal loss of face to the applicant but also to the family in Vietnam. The applicant advises that his mother was able to organise financial support from Vietnam to continue his studies in Australia following the loss of position by his father.

    The applicant as indicated above is in a spousal relationship and now has a responsibility to his Australian Partner to complete his studies In order to have employable skills in order to be able to contribute to the household that he has established in Australia.

    Circumstances in which ground of cancellation arose

    Reference has been made to the circumstances leading to the cancellation of the visa.

    As indicated elsewhere, review applicant acknowledges that condition 8516 was breached even for a short period of time. He advises that he wishes to apologise to the Tribunal and to the Department for his error. He advises had he known and had he had better advice and Information his position would now be different. He advises that he had no control over his personal and family circumstances that led to the turmoil in his life which impacted upon his reliance on the education Agent. As indicated above he now understands that his situation could have been dealt with in another way without having to come to this point. He again apologises to the Tribunal and the Department.

    It can be said that the review applicant has continued to study and indeed it can be said that at the time of the decision of the delegate he was enrolled in a degree program. Moreover it can be said that he is currently studying the degree program. Please refer to the attached  COE supporting this statement.

    Any other relevant matters to be raised by the visa holder

    Review applicant is keen to complete his current course of studies so that he can contribute to household that he has established in Australia. 

14. The applicant provided medical materials pertaining to his father, and COE documents in support of his application. This included a CEO created in March 2015 for his current Bachelor of business studies, commenced in March 2015 and brought forward from July 2016. The applicant has abandoned his plans to study a Diploma course as per the October 2014 enrolment.

15. The applicant discussed his study history. He had completed half an accountancy degree in Vietnam prior to coming to Australia. The applicant stated that he left because the university he was studying at no longer was a ‘hot’ university in Vietnam. He came to Australia enrolled in an English program, a Diploma of Business Enterprise, and a Bachelor of Business (Banking and Finance) at Victoria University. The applicant stated that he had paid for the English and Diploma course, but not the higher degree course. The applicant stated that he understood he could pay for this course at a later date. The applicant stated he completed the Diploma course at the end of 2013, and that his degree course was to commence in February 2014. The applicant did not commence the higher degree course because he was unable to pay for the course. The applicant sought advice from an agent. On 6 May 2014 the applicant enrolled in a Certificate III Commercial Cookery course, commencing on 12 May 2014, with subsequent enrolments created on 21 May 2014 in a Certificate IV Commercial Cookery course and Diploma of Hospitality. The applicant stated that he enrolled in a cheaper course. The applicant’s enrolment in his higher degree course was cancelled on 14 May 2014 due to his non-commencement of studies. The applicant stated that he had told his agent that he wanted to remain compliant with his legal obligations. The applicant was informed of his breach of conditions in a letter from the Department on 24 October 2014. The applicant subsequently enrolled in a higher degree course on 28 October 2014. The applicant acknowledged that it was the letter of the Department that caused him to enrol in the course. The Tribunal asked why the applicant had not enrolled in a higher degree course when enrolling in the Certificate III, IV and Diploma courses. The applicant stated he did not believe he could enrol at that time. The Tribunal compared this to his actual experience from Vietnam, where the applicant had enrolled in a higher degree course prior to its commencement. The Tribunal considers that the applicant was aware that he could enrol in a higher degree course but deliberately did not do so. The Tribunal noted that but for the letter from the Department the applicant may not have enrolled in a higher degree course. The applicant stated he always had this intention to return to his higher degree. The applicant blamed his agent for this error. The Tribunal however does not accept that it is solely the fault of the agent for this breach, but that responsibility lies with the applicant for meeting the provisions of his visa.

16. The Tribunal discussed the reason why the applicant had not continued with his higher degree course at Victoria University. The applicant stated that his father had become unwell and that he was unable to continue working in Vietnam. The applicant stated that financial difficulties arose from this situation. The Tribunal noted that the documents provided by the applicant pertaining to his father’s health were dated August 2015, and related only in part the health situation of the applicant’s father. The Tribunal expressed its concern that the medical material was created so long after the health situation for the applicant’s father had arisen, and questioned the authenticity of the documentation.

17. The Tribunal noted that the applicant had not studied between the end of his Diploma of Business Enterprise course in December 2013 until the commencement of his cookery course in May 2014. The Tribunal noted that while the cancellation of his higher degree enrolment had occurred in May 2014, that course had commenced in February 2014. The applicant stated that he had gone to orientation events but had not studied. The applicant stated he had waited for his agent to tell him he could start. The Tribunal noted that his enrolment was a week before his course commenced. The Tribunal noted that this was a lengthy break from his studies, 5 months from his last studies, and 3 months after his last enrolment had commenced, which he had not taken up.

18. The Tribunal noted the unusual circumstances where the applicant has been provided with a Bridging Visa C after his student visa was cancelled, which has work and study rights attached. The applicant confirmed that he had continued to study his Certificate III cookery course until the start of March 2015. The applicant stated that he had left his cookery course incomplete and commenced the degree course from Cambridge International College earlier. The applicant stated that he wanted to get his studies back in line. The Tribunal noted that this was contrary to the applicant’s submissions which stated that he had completed his Certificate III course. The applicant acknowledged he had not completed this course. The applicant stated that he wanted to get back to doing a higher degree course and so had left his cookery course unfinished.

19. The Tribunal asked the applicant about his study intentions. The Tribunal expressed its concern that the applicant had left a course of study in business, and commenced courses in cookery. The Tribunal noted that this was contrary to his previous studies. The applicant provided vague reasons for his change of course, stating that there were restaurant opportunities in Vietnam. The applicant stated it was on the advice of his agent as well. The Tribunal questioned why the applicant would leave his study pathway for such a reason. The applicant stated that he had subsequently decided to return to his higher degree business related studies.

20. It was submitted by the applicant and his agent that should the applicant’s visa remain cancelled he would face significant hardship through the waste of time spent studying. The applicant stated that the length of time he had spent studying would be questioned by people in the future, including future employers. The Tribunal noted its concern with this submission, noting that it had been the applicant’s own decision to leave certain courses and commence others which has led to the applicant’s sporadic study history. In particular it was the applicant’s own decision to leave the business degree pathway to start a cookery course, and it was the applicant’s own decision to leave the cookery course unfinished to return to a higher degree course. The Tribunal noted that the applicant had commenced and not completed an accountancy course in Vietnam prior to his coming to Australia. The Tribunal does not accept that the cancellation of his visa would be the attributable reason for the applicant’s lengthy period of study for limited outcome. The Tribunal did note that the applicant had completed a Diploma of Business Enterprise in his time in Australia. This would provide him with some opportunities in Vietnam and limit his hardship, should he return.

21. The Tribunal discussed with the applicant the responsibility for his visa situation. The applicant stated that he had told his agent that he wanted to remain compliant with his visa conditions, and that he had relied upon the advice and assistance of the agent to enrol in the various courses. The Tribunal questioned the applicant’s statement that it was his agent who was at fault, noting that the applicant was an intelligent and educated young man, who had agreed to enrol in cookery courses which appeared to be outside of his interest or employment future. The Tribunal noted that the applicant had repeatedly used this agent, including for his vocational course enrolments in May 2014; to enrol him in Cambridge International College in October 2014 after being notified of the breach of conditions; returned to that agent in January 2015 for advice when his visa was cancelled; and returned to them again in March 2015 to change the commencement date of his higher degree course. The Tribunal notes that the applicant used a different agent to apply for his Partner visa, and a different agent again to assist him at the Tribunal. The Tribunal questioned the applicant with respect to his concern for his agent’s actions, given he returned to the agent when he knew his visa had been cancelled. The Tribunal stated that while he may have received some poor advice, the Tribunal did not accept that the culpability for the applicant’s decisions in his enrolments solely sat with his agent, but that the applicant was also complicit in the decisions regarding his study and compliance with visa conditions. The Tribunal places limited weight on this aspect of the applicant’s claims.

1. The Tribunal discussed with the applicant his unusual migration situation. As agreed with the applicant’s present agent, the provision of the Bridging Visa C (BVC) in the applicant’s circumstances was highly unusual. In most student visa cancellations, Bridging Visa E’s are provided by the Department, with very occasional study rights provided to complete a course nearly complete where compelling circumstances arise. The Tribunal and the applicant’s agent noted that based on the limited information before the Department, the study right would probably not have been provided in the applicant’s circumstances.

2. However it was noted that the applicant had applied for a Partner visa on 20 January 2015, 14 days after the cancellation of his student visa. The applicant did not apply for a separate Bridging Visa. His BVC appears to have been provided pursuant to the Partner visa application. The Tribunal notes that at the time of the application for the Partner visa the applicant would have been unlawful, given his student visa cancellation. However the Tribunal understands that in the circumstances, the Partner visa application is not barred by the Migration Act, and that the BVC is the appropriate Bridging Visa to be applied in those circumstances. Had the applicant applied for his Partner visa prior to the cancellation, it is the understanding of the Tribunal that he would have been provided with a BVA. The BVC was provided by the Partner section of the Department, who provided the applicant with the rights associated with a BVC pending the determination of the Partner visa application. Accordingly, the applicant has been lawfully, and correctly as considered by the Tribunal, provided with study rights while his Partner visa application is considered.

3. The Tribunal further notes that the timing of the applicant’s Partner visa application has some relevance, given that applied for the visa 14 days after his student visa cancellation. This is within 28 days of becoming unlawful, and as such limitations provided for in Schedule 3 of the Migration Regulation do not apply to the applicant. This means that the applicant does not have to meet compelling and compassionate circumstances to be granted his Partner visa, removing a potential obstacle to the provision of this visa.

4. It was submitted that the cancellation of the applicant’s student visa would be a significant hardship, given that he had commenced his higher degree course and had been a genuine student for the duration of his time in Australia. The Tribunal noted that the applicant presently had study rights which entitle him to continue his studies. The applicant’s agent stated that his situation if his student visa was cancelled would be complex, and that his study provider may not accept the applicant to continue studying. The applicant stated his present studies would be wasted. The Tribunal asked if the applicant had completed any units of his present course, which the applicant stated he had. The Tribunal noted that if the applicant was required to stop studying for a period of time, he could have these units credited to his studies in the future, should he not be permitted to study by his present course provider.

5. It was submitted that the applicant has always been a student, and that he had returned to his higher degree course and had been studying this since March 2015. The Tribunal noted that the applicant has already had a five month delay in his studies, from the completion of his Diploma course to the commencement of the cookery course. The Tribunal noted that irrespective of the outcome of this application, the applicant currently had an entitlement to continue studying as per his Bridging Visa conditions, as noted above lawfully provided with respect to his Partner visa application. This study right entitles him to remain studying at the course provider of his choosing, including his present studies at Cambridge International College, while his Partner visa application is being considered. The Tribunal notes that Cambridge International College is presently permitting him to study based on his current Bridging Visa status, and not pursuant to any review with the Tribunal. The Tribunal does not consider that this attitude would change in the event of a decision to affirm the cancellation of the student visa, and that the applicant would not be disadvantaged in his present studies by a cancellation of the student visa. The Tribunal considers that there will be no detriment to the applicant regarding his studies in the circumstances where his student visa remained cancelled.

6. The Tribunal noted that the applicant had lodged an application for a Partner visa. The Tribunal asked the applicant what his intentions were with respect to staying in Australia. The applicant stated that he wanted to stay here permanently. The Tribunal noted that this caused a further serious concern that the applicant was now in breach of another regulation of his visa. The Tribunal noted the provisions of subclause 573.223(1)(a), which state:

   [572.223] (1)    The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)    the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)    the applicant’s circumstances; and

   (ii)    the applicant’s immigration history; and

   (iii)    if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)    any other relevant matter;

7. The Tribunal noted that the stated intention of the applicant to remain in Australia permanently would appear to be in breach of this subclause of his student visa. The applicant’s agent noted that there had been conflicting advice from various agents, and the applicant had been foolish to rely upon them.

8. The Tribunal understands that applicants may have a desire to remain in Australia after their student visas have expired and may make plans to seek to remain in Australia. The Tribunal understands that this desire to remain may not be a reason to affirm the cancellation in itself, the recent decision of Khanna v MIBP [2015] FCCA 1971 providing some useful guidance on this consideration. However in these circumstances, the applicant has progressed some way down the pathway to remain permanently in Australia, it has moved from an aspirational option to one that is being actively pursued by the applicant. The applicant has lodged a Partner visa application, the Tribunal notes after his student visa was cancelled, and has stated to the Tribunal that it is his intention to remain in Australia permanently. This goes further than having a desire to remain in Australia, but an active application for this purpose. He has then come to the Tribunal to argue that his student visa should be reinstated, causing some concern to the Tribunal regarding the intention of the applicant to remain in Australia after the cessation of his student visa, given the application and stated intention. The Tribunal considers on the evidence of the applicant that he genuinely intends to stay in Australia permanently, and that by his actions and intention the applicant is likely to breach this provision of his student visa. The Tribunal gives some weight on this consideration.

9. It is further noted that the applicant‘s actions in seeking to remain in Australia permanently reduce his claims of hardship on return to Vietnam, given the potential for him to remain in Australia. The loss of face and difficulty in finding work in Vietnam is less relevant given his stated intention to remain in Australia. The applicant has actually achieved qualifications that would assist him should he return to Vietnam. The Tribunal places little weight on this aspect of the applicant’s claims.

10. The Tribunal has considered the full circumstances of the applicant. The Tribunal has considerable concern as to the reasons for the applicant changing his course from a pathway of business, to cookery course. The applicant provided limited reasons for his pursuit of this hospitality pathway, and by his very actions in leaving his cookery course and finished as demonstrated the questionable motive for this course of study. The Tribunal considers that the applicant sought a way to remain in Australia after financial difficulties curtailed his opportunity through his original study pathway, and chose the vocational course. The Tribunal further does not accept that the applicant’s agent was fully responsible for the error of the applicant breaching his enrolment conditions. The Tribunal considers that the applicant has some responsibility for this failure to comply, that he was aware that he could in role in a higher degree course in the future but did not do so. That he was able to enrol in a Higher Degree course so quickly after he was advised of the possible breach of condition shows that he could have enrolled in a higher course, should he have chosen to do so, much earlier. The Tribunal notes that the applicant continued to use this agent up until March 2015 for student visa purposes, diminishing the strength of his apportioning blame to this agent for his breaches. As noted above, the applicant has gone on to create a further breach of his student visa by actively seeking to remain in Australia permanently. The applicant would appear to have limited regard for the provisions that apply to his visa.

11. The Tribunal notes that given his present BVC and the conditions attached, the effect of the cancellation of the student visa is minimal. He is lawfully entitled to remain studying while his Partner visa application is assessed, as he is presently doing, exercising the right on this BVC. The Tribunal places weight on this situation only to the extent that it means that any hardship arising from his student visa cancellation for the applicant in Australia is limited, in particular with regard to his study interests. The effect of the cancellation of his student visa is limited while he lawfully applies for the alternate visa. Accordingly, limited weight is placed on this aspect of the applicant’s circumstances.

12. Considering the circumstances as a whole, the period of not studying in Australia, the changes to the applicant’s enrolments, his late return to enrolment in a higher degree course, that was entered into only after the applicant was notified of his potential breach of visa conditions, his subsequent activity applying for a visa to remain permanently in Australia, and the limited hardship that the cancellation would cause to the applicant, in Australia and in Vietnam, the Tribunal concludes that the visa should be cancelled.

    DECISION

13. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Stuart Webb
    Member